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EVIDENCE - Witnesses - Credibility

Tuesday, January 30, 2018 @ 9:10 AM  


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Appeal by the accused from convictions of indecent assault and the sentence imposed. The accused was a pediatrician. Six former female patients alleged the accused molested them between 1964 and 2013 when they were between the ages of eight and 15. LH alleged the accused molested her on the breasts and vagina while she was an inpatient at a hospital. She claimed that he touched her breasts and vagina while examining her in an examination room. She also claimed she awoke one night to find the accused on top of her, touching her breasts and vagina. LC alleged the accused molested her on the breast while attending at her home to administer an allergy shot. The accused denied that the touching of LC and LH occurred. The other complainants alleged that the accused molested them under the guise of performing a medical exam. The accused was convicted of two counts of indecent assault with respect to LH and one count of indecent assault with respect to LC. All other charges were dismissed. The trial judge rejected the accused’s denials and accepted the evidence of LC and LH. The accused was sentenced to 15 months imprisonment for the indecent assault of LH, consecutive to three months’ imprisonment for the indecent assault on LC.

HELD: Appeal allowed. In reaching her conclusions, the trial judge made findings that were problematic. The trial judge found that the accused was more involved in the care of LH than he admitted without any basis for making that conclusion. She found LH credible, in part, because she had no motive to lie. However, the absence of any apparent motive to lie was not a reliable indicator of credibility. Furthermore, the trial judge relied on LH’s uncorroborated evidence that she told a friend of the incidents to enhance LH’s credibility. She also incorrectly found corroboration was unavailable because the incidents took place when the accused and LH were alone. However, on LH’s version of events, a nurse walked in during the most serious of the assaults she described. While none of these failings alone were fatal to the judge’s credibility findings, collectively they raised serious concerns regarding the validity of the reasons upon which the judge relied to accept the evidence of LH. The trial judge’s credibility findings were based, in part, on a misapprehension of the evidence. With respect to LC, the judge found that the accused’s evidence that he agreed to make house calls with no ulterior purpose was not credible. However, there was no evidence to contradict the accused’s assertion that at the time he regularly made house calls for a number of patients. Furthermore, the judge appeared to have drawn an inference of guilt from her disbelief of the accused’s evidence. It was an error of law to do so absent independent evidence that the accused concocted a lie for the purpose of evading responsibility. The trial judge also used the lack of a motive to lie to enhance the credibility of LC and her mother. The three convictions were set aside and a new trial was ordered on those counts. In light of the conclusion on the conviction appeal, it was unnecessary to address the sentence appeal.

R. v. Sanchez, [2017] O.J. No. 6559, Ontario Court of Appeal, G.J. Epstein, D. Paciocco and I.V.B. Nordheimer JJ.A., December 18, 2017. Digest No. TLD-January292018004